DOCS v Graves and Phillips - [2009] NSWLC 33

Local Court of New South Wales

CITATION: DOCS v Graves and Phillips [2009] NSWLC 33

JURISDICTION: Children's Court

PARTIES: Department of Community Services
Joanna Graves
Trent Phillips

FILE NUMBER: 4/09

PLACE OF HEARING: Bega Local Court

DATE OF DECISION: 02/24/2009

MAGISTRATE: Magistrate Bone

CATCHWORDS: Care and Protection - parental responsibility - application for interim orders - evidence of domestic violence between parents - likely impact upon children raised in atmosphere of domestic violence - removal a matter of last resort

LEGISLATION CITED: Children and Young Persons (Care and Protection ) Act 1988 - Child Welfare Act 1939

CASES CITED: CD V Chief Executive, Department of Education and Community Services (2000) 27 Fam LR 19
Ex Parte Minister for Child Welfare; Re Hancock & Anor (1967) 86 WN (Pt. 2) (NSW) 371
L V Director of Family Services (1997) 22 Fam LR 275
Minister for the Interior V Neynes (1964) 113 CLR 411
Re Edward [2001] NSWSC 284
Re Jayden [2007] NSWCA 35
T &T [2003] FCA 1129

TEXTS CITED:

REPRESENTATION:

ORDERS:

- 9 -

Re: ‘Katie’ & ‘Robert’

Reasons for Decision

1 “Katie Phillips” and “Robert Phillips” are the children of “Joanna Graves” and “Trent Phillips”. Katie is five and Robert is two. Until a fortnight ago the children had always lived with one or both of their parents. On 9^th February, 2009, applications were made to the Bega Children’s Court. The applicant, Cara Hopkins, an officer of Department of Community Services (DOCS), sought findings that the children were in need of care. The grounds for the applications were (a) that the children had been, or were likely to be, physically or sexually abused or ill-treated, (b) that the children’s basic physical, psychological or educational needs were not being met, or were likely not to be met, by their parents and (c) that the children are suffering or are likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which they were living. The children were removed from their parents at the time of the applications

2 On 10^th February, the day that the matter was first before the court, the children were unrepresented. DOCS and the parents appeared and were represented. DOCS sought that parental responsibility for the children be given to the Minister on an interim basis. The parents asked that they retain parental responsibility for the children. There was, at that stage, only one piece of evidence before me, that being the affidavit of Cara Hopkins. I heard a submission from DOCS’ solicitor and then began to hear a submission from the parents’ solicitor. As it became increasingly apparent that a deal of the DOCS evidence was being challenged, I adjourned the case until the next day to allow evidence to be filed by the parents and for the submissions to be completed. I also asked that the Registrar attempt to obtain a grant of legal aid for the children. The parents filed four affidavits and DOCS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DOCS v Graves and Phillips

Details

AGLC: DOCS v Graves and Phillips [2009] NSWLC 33
Case: [2009] NSWLC 33
Decision Date: 02/24/2009

CaseChat Overview and Summary

In the Family Court of Australia, the Department of Communities and Justice sought interim care and protection orders for two children, DOCS v Graves and Phillips. The department argued that the children were at risk due to domestic violence between their parents, which had been substantiated by the mother. The parents, Graves and Phillips, contested the application, asserting that they could provide a safe environment for their children.

The court was required to determine whether the evidence of domestic violence was sufficient to warrant the removal of the children from their parents' care. It needed to consider the likely impact of the domestic violence on the children and whether their removal was necessary in the best interests of the children, as a matter of last resort. The court had to weigh the potential harm against the benefits of maintaining the children in their current environment.

The court found that the domestic violence had created an unsafe environment for the children, leading to significant psychological harm. It concluded that removal was necessary to protect the children from further harm. The court held that the evidence of domestic violence was compelling and that the parents had not adequately demonstrated their ability to provide a safe home. Therefore, the court granted the application for interim care and protection orders, removing the children from the parents' care.

Orders